This year has seen breakthroughs in the fixed outlook and flow of law. Several laws which portrayed that India was procrastinating when it came to recognition of certain individual’s rights have been struck down. The judiciary, mainly lead by former CJI Dipak Misra has acted as the last line of defense against indifferent lower courts, and despotic rulings and laws. The following decisions delivered by the Supreme Court has eternally made 2018 a year marked in history.
DEVOTION CANNOT BE SUBJECTED TO GENDER DISCRIMINATION
Sabarimala Temple is a devotional center situated in the Periyar Tiger Reserve of Kerela. As per the age old tradition women ‘of menstrual age’ weren’t allowed to visit the temple to worship due to certain legends and beliefs, as well as the tedious trek and penance which had to be completed before being able to see lord Ayyappa.
On September 28 2018, a five-bench judge comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, led by CJI Dipak Misra overruled the Kerala High Court’s 27-year-old decision that restricted the entry of women into the temple stateting that “Devotion cannot be subjected to gender discrimination” “such practices results in indignity to women and the degradation of their status.” The 4:1 majority held that the temple’s practice of excluding women is unconstitutional. It held that the practice violated the fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’. Indu Malhotra differed from her male peers with a dissenting judgement pointing out that ‘morality’ (constitutional morality) must be understood in the context of India being a pluralistic society. The State must respect the freedom of various individuals and sects to practice their faith. Moreover the courts ought to not interfere and determine which religious practices should be abolished or not.
DECRIMINALIZATION OF SECTION 377
On 6th September 2018, the Supreme Court through its ground-breaking verdict for the LGBT community lifted the colonial-era ban on gay sex. The five-judge SC bench’s decision to decriminalize gay sex not only restored faith in the Indian judicial system but also upheld and gave due recognition to the rights of individuals (under individuals right to privacy). The court observed that persons cannot be seen as criminals to enjoy consensual unnatural sex between two consenting adults; Section 377 is ‘irrational, indefensible and manifestly arbitrary’.
Furthermore the Supreme Court held that “Section 377 shall not lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of beastiality.”
FREEDOM OF CHOICE UPHELD BY RECOGNISING THE VALIDITY OF HADIYA’S MARRIAGE
The marriage of Hadiya with Safin was annulled in May 2017 by the Kerala High Court, when the parents filed a complaint that she was a victim of love jihad, therefore was brainwashed into marriage and conversion to Islam. Hadiya was 24 years old when she entered into matrimonial relations with Shafin.
On 08th March 2018 the SC restored Hadiya’s marriage and Set aside the Kerala HC’s repressive order. This decision of the Supreme Court was further upheld by a judgement delivered by the same court on April 09, 2018. The Supreme Court observed that the Kerala high court, as is noticeable from the impugned verdict, has been erroneously guided by some kind of social phenomenon that was painted before it.” Further it was observed by the CJI Dipak Misra(for himself and A.M. Khanwilkar, J.) that “The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms.” “It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity.” In this case the Supreme Court has clearly stepped up to prevent transgression of the individual’s liberty of choice, a fundamental right guaranteed by our Constitution.
LIVE BROADCASTING OF SUPREME COURTS PROCEEDING
‘Open Court’ indicates a court to which the public have a right to be admitted. The right of access to justice flowing from Article 21 of the Constitution would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts.
On 26th September 2018 the all the three judges of the Supreme Court lead by CJI Dipak Misra unanimously delivered a verdict which allows streaming of court proceedings live. Live-streaming and video recording of the court proceedings of cases of national and constitutional importance is a step taken towards effectuating the public’s right to know; transparency, and increasing accountability of the legal fraternity.
In the words of Justice Chandrachud, “Technology has become an inevitable facet of all aspects of life. Internet penetration and an increase in the use of smartphones has revolutionized how we communicate… public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions.”
AADHAAR VERIFICATION CANNOT BE MANDATORY FOR PRIVATE ENTITIES:
The word ‘Aadhaar’ in India is associated with the Unique Identity Card that is issued by the Unique Identification Authority of India, to a person from where he/she can be identified. Though the Supreme Court held the validity of Aadhaar Act, it did strike down the provision which allowed private entities to mandate sharing of citizen data by producing the Aadhaar card. Hence while Aadhaar is mandatory for PAN allotment and filling IT returns; for banks, telecommunications companies, schools, it is voluntary and any such procedure made obligatory is unconstitutional.
ADULTERY IS NOT A CRIME:
The provision that criminalized Adultery in India was encompassed under S.497 of the IPC and S.198 of CrPC. However these provisions allowed the husband to bring charges against the man with whom the wife has committed adultery, while the wife itself could not be punished due to the archaic concept that women were the property of men and the adulterous man has defiled the husband’s property. A Public Interest Litigation was filed challenging the constitutional validity of Section 497 of IPC and Section 198 (2) of CrPC.
On 27th September 2018, the Supreme Court observed that Section 497 of the IPC cannot be interpreted as a beneficial provision under Article 15(3) as it indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. It violates a woman’s right to dignity, resulting in infringement of Article 21 of the Constitution of India. Thus the court struck down the impugned provisions which treated the husband as the master, however, it clarified that adultery will continue to be a ground for divorce. Further the court also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC.
AN END TO THE CAUVERY PURSUIT
On 16th February 2018, a three judge bench of the Supreme Court pronounced the verdict to settle Cauvery dispute between the states of Karnataka, Tamil Nadu and Kerala and the UT of Puducherry, which was further reinforced by an order passed on May 18, 2018.The Supreme Court declared Cauvery as a national asset; it accepted Karnataka’s contention that Bengaluru is a “world-class” city which needs water infrastructure; as well as reduced the allocation of water from State of Karnataka to Tamil Nadu (i.e. the bench, ordered Karnataka to release 177.25 thousand million cubic feet instead of 192 thousand million cubic feet of water to Tamil Nadu). The arrangement made by the Cauvery Water Dispute Tribunal was held to be final along with the Draft scheme of distribution of water laid down by the Supreme Court.
This year we have witnessed revolutionary judgements pronounced by the apex court of the nation. In the hope that this trend continues India awaits for the next ground-breaking ruling & settlement of the Babri Masjid issue.